Exhibit 10.53
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT, dated as of December 18, 2008 (the “
Effective Date ”), by and between Priceline.com
Incorporated, a Delaware corporation, with its principal office at
800 Connecticut Avenue, Norwalk, Connecticut 06854 (the “
Company ”), and Robert Mylod (“ Executive
”).
W
I T N
E S S E T H
:
WHEREAS , the Company and Executive entered into an
employment agreement, dated November 20, 2000 (the “
Prior Employment Agreement ”);
WHEREAS , the Company desires that Executive be employed
as Vice Chairman and Head of Worldwide Strategy and Planning of the
Company, and the Company and Executive desire to amend the Prior
Employment Agreement to account for the effect of Section 409A
of the Internal Revenue Code of 1986, as amended (“
Section 409A of the Code ”) on the agreement;
and
WHEREAS , the Company and Executive desire to replace
and supersede the Prior Employment Agreement in its entirety and
enter into this Amended and Restated Employment Agreement (the
“ Agreement ”) providing for the terms of
Executive’s employment by the Company.
NOW, THEREFORE
, in consideration of the premises
and mutual covenants contained herein and for other good and
valuable consideration, the parties agree as follows:
1.
Term of Employment
. Except for earlier
termination as provided in Section 8 hereof, Executive’s
employment under this Agreement shall continue on the same basis as
set forth in the Prior Employment Agreement and, as a result, shall
end on November 20, 2009 (the “ Initial Employment
Term ”), provided that the Initial Employment Term shall
be automatically extended for additional terms of successive one
(1) year periods (each, an “ Additional Employment
Term ”) unless the Company or Executive gives written
notice to the other at least ninety (90) days prior to the
expiration of the Initial Employment Term or then-current
Additional Employment Term that Executive’s employment
hereunder shall not be so extended. The Initial Employment
Term and each Additional Employment Term shall be referred to
herein as the “ Employment Term .”
2.
Positions . (a) Executive shall serve as the
Vice Chairman and Head of Worldwide Strategy and Planning of the
Company. Executive shall also serve, if requested by the
Chief Executive Officer of the Company, as an executive officer and
director of subsidiaries and a director of associated companies of
the Company and shall comply with the policy of the Compensation
Committee of the Company’s Board of Directors (the “
Compensation Committee ”) with regard to retention or
forfeiture of director’s fees.
(b)
Executive shall report directly to
the Chief Executive Officer of the Company and, shall have such
duties and authority, consistent with his then position as shall be
assigned to him from time to time by the Board of Directors of the
Company (the “ Board ”) or the Chief Executive
Officer of the Company.
(c)
During the Employment Term,
Executive shall devote substantially all of his business time and
efforts to the performance of his duties hereunder; provided,
however , that Executive shall be allowed, to the extent that
such activities do not materially interfere with the performance of
his duties and responsibilities hereunder, to manage his personal
financial and legal affairs and to serve on corporate, civic,
charitable and industry boards or committees. Notwithstanding
the foregoing, Executive
shall only serve on corporate boards of
directors if approved in advance by the Chief Executive Officer of
the Company.
3.
Base Salary
. Commencing on the Effective
Date and continuing during the remainder of the Employment Term,
the Company shall pay Executive a base salary at the annual rate of
not less than $420,000. Base salary shall be payable in
accordance with the usual payroll practices of the Company.
Executive’s Base Salary shall be subject to annual review by
the Board or the Compensation Committee during the Employment Term
and may be increased, but not decreased, from time to time by the
Board or the Compensation Committee. The base salary as
determined as aforesaid from time to time shall constitute “
Base Salary ” for purposes of this
Agreement.
4.
Incentive Compensation
. (a) Bonus
. Executive shall be eligible to participate in any annual
bonus plan the Company may implement at any time during
Executive’s Employment Term for senior executives at a level
commensurate with his position.
(b)
Long Term Compensation
. For each fiscal year or
portion thereof during the Employment Term, Executive shall be
eligible to participate in any long-term incentive compensation
plan generally made available to senior executives of the Company
at a level commensurate with his position in accordance with and
subject to the terms of such plan.
(c)
Other Compensation
. The Company may, upon
recommendation of the Compensation Committee, award to Executive
such other bonuses and compensation as it deems appropriate and
reasonable.
5.
Employee Benefits and
Vacation .
(a) During the Employment Term, Executive shall be entitled
to participate in all benefit plans and arrangements and fringe
benefits and perquisite programs generally provided to comparable
senior executives of the Company.
(b)
During the Employment Term,
Executive shall be entitled to vacation each year in accordance
with the Company’s policies in effect from time to time, but
in no event less than four (4) weeks paid vacation per
calendar year. Executive shall also be entitled to such
periods of sick leave as is customarily provided by the Company for
its senior executive employees.
6.
Business Expenses
. The Company shall reimburse
Executive for the travel, entertainment and other business expenses
incurred by Executive in the performance of his duties hereunder,
in accordance with the Company’s policies as in effect from
time to time; provided , however , that such expenses
must be paid no later than the last day of the calendar year
following the calendar year in which such expenses were incurred
and further provided that in no event will the amount of
expenses so reimbursed in one taxable year affect the amount of
expenses eligible for reimbursement in any other taxable
year.
7.
Termination
. (a) The employment of
Executive under this Agreement shall terminate upon the earliest to
occur of any of the following events:
(i)
the death of Executive;
(ii)
the termination of Executive’s
employment by the Company due to Executive’s Disability
pursuant to Section 7(b) hereof;
(iii)
the termination of Executive’s
employment by Executive for Good Reason pursuant to
Section 7(c) hereof;
(iv) the termination of Executive’s employment
by the Company without Cause;
2
(v)
the termination of employment by
Executive without Good Reason upon sixty (60) days prior written
notice; or
(vi) the termination of Executive’s employment
by the Company for Cause pursuant to Section 7(e).
(b)
Disability
. If by reason of the same or
related physical or mental illness or incapacity, Executive is
unable to carry out his material duties pursuant to this Agreement
for more than six (6) consecutive months, the Company may
terminate Executive’s employment for disability (“
Disability ”). Such termination shall be upon
thirty (30) days written notice by a Notice of Disability
Termination, at any time thereafter while Executive consecutively
continues to be unable to carry out his duties as a result of the
same or related physical or mental illness or incapacity. A
Termination for Disability hereunder shall not be effective if
Executive returns to the full time performance of his material
duties within such thirty (30) day period.
(c)
Termination for Good
Reason . A
Termination for Good Reason means a termination by Executive by
written notice given within ninety (90) days after the occurrence
of the Good Reason event, unless such circumstances are fully
corrected prior to the date of termination specified in the Notice
of Termination for Good Reason (as defined in
Section 7(d) hereof). For purposes of this
Agreement, “ Good Reason ” shall mean the
occurrence or failure to cause the occurrence, as the case may be,
without Executive’s express written consent, of any of the
following circumstances: (i) any material diminution of
Executive’s positions, duties or responsibilities hereunder
(except in each case in connection with the termination of
Executive’s employment for Cause or Disability or as a result
of Executive’s death, or temporarily as a result of
Executive’s illness or other absence), or, the assignment to
Executive of duties or responsibilities that are inconsistent with
Executive’s then position; (ii) removal of, or the
non-reelection of, Executive from officer positions with the
Company specified herein without election to a higher position or
removal of Executive from any of his then officer positions;
(iii) a relocation of the Company’s executive office in
Connecticut to a location more than thirty-five (35) miles
from its current location or more than thirty-five (35) miles
further from Executive’s residence at the time of relocation;
(iv) a failure by the Company (A) to continue any bonus
plan, program or arrangement in which Executive is entitled to
participate (the “ Bonus Plans ”), provided that
any such Bonus Plans may be modified at the Company’s
discretion from time to time but shall be deemed terminated if
(x) any such plan does not remain substantially in the form in
effect prior to such modification and (y) if plans providing
Executive with substantially similar benefits are not substituted
therefor (“ Substitute Plans ”), or (B) to
continue Executive as a participant in the Bonus Plans and
Substitute Plans on at least the same basis as to potential amount
of the bonus as Executive participated in prior to any change in
such plans or awards, in accordance with the Bonus Plans and the
Substitute Plans; (v) any material breach by the Company of
any provision of this Agreement, including, without limitation,
Section 12 hereof; or (vi) failure of any successor to
the Company (whether direct or indirect and whether by merger,
acquisition, consolidation or otherwise) to assume in a writing
delivered to Executive upon the assignee becoming such, the
obligations of the Company hereunder.
(d)
Notice of Termination for Good
Reason . A Notice
of Termination for Good Reason shall mean a notice that shall
indicate the specific termination provision in
Section 7(c) relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a
basis for Termination for Good Reason. The failure by
Executive to set forth in the Notice of Termination for Good Reason
any facts or circumstances which contribute to the showing of Good
Reason shall not waive any right of Executive hereunder or preclude
Executive from asserting such fact or circumstance in enforcing his
rights hereunder. The Notice of Termination for Good Reason
shall provide for a date of termination not less than ten
(10) nor more than sixty (60) days after the date such Notice
of Termination for Good Reason is given, provided that in the case
of the events set forth in Sections 7(c)(i) or (ii), the date
may be five (5) days after the giving of such
notice.
3
(e)
Cause . Subject to the notification provisions
of Section 7(f) below, Executive’s employment
hereunder may be terminated by the Company for Cause. For
purposes of this Agreement, the term “Cause” shall be
limited to (i) willful misconduct by Executive with regard to
the Company which has a material adverse effect on the Company;
(ii) the willful refusal of Executive to attempt to follow the
proper written direction of the Board or a more senior officer of
the Company, provided that the foregoing refusal shall not be
“Cause” if Executive in good faith believes that such
direction is illegal, unethical or immoral and promptly so notifies
the Board or the more senior officer (whichever is applicable);
(iii) substantial and continuing willful refusal by Executive
to attempt to perform the duties required of him hereunder (other
than any such failure resulting from incapacity due to physical or
mental illness) after a written demand for substantial performance
is delivered to Executive by the Board or a more senior officer of
the Company which specifically identifies the manner in which it is
believed that Executive has substantially and continually refused
to attempt to perform his duties hereunder; or (iv) Executive
being convicted of a felony (other than a felony involving a
traffic violation or as a result of vicarious liability). For
purposes of this paragraph, no act, or failure to act, on
Executive’s part shall be considered “willful”
unless done or omitted to be done, by him not in good faith and
without reasonable belief that his action or omission was in the
best interests of the Company. A notice by the Company of a
non-renewal of the Employment Term pursuant to Section 1
hereof shall be deemed an involuntary termination of Executive by
the Company without Cause as of the end of the then Employment
Term, but Executive may terminate at any time after the receipt of
such notice and shall be treated as if he was terminated without
Cause as of such date.
(f)
Notice of Termination for
Cause . A Notice of
Termination for Cause shall mean a notice that shall indicate the
specific termination provision in Section 7(e) relied
upon and shall set forth in reasonable detail the facts and
circumstances which provide for a basis for Termination for
Cause. Further, a Notification for Cause shall be required to
include a copy of a resolution duly adopted by at least two-thirds
(2/3) of the entire membership of the Board at a meeting of the
Board which was called for the purpose of considering such
termination and which Executive and his representative had the
right to attend and address the Board, finding that, in the good
faith of the Board, Executive engaged in conduct set forth in the
definition of Cause herein and specifying the particulars thereof
in reasonable detail. The date of termination for a
Termination for Cause shall be the date indicated in the Notice of
Termination. Any purported Termination for Cause which is
held by a court not to have been based on the grounds set forth in
this Agreement or not to have followed the procedures set forth in
this Agreement shall be deemed a Termination by the Company without
Cause.
8.
Consequences of Termination of
Employment .
(a)
Death . If, Executive’s employment is
terminated by reason of Executive’s death, the employment
period under this Agreement shall terminate without further
obligations to Executive’s legal representatives under this
Agreement except for: (i) any compensation earned but
not yet paid, including and without limitation, any bonus if
declared or earned but not yet paid for a completed fiscal year,
any amount of Base Salary earned but unpaid, any accrued vacation
pay payable pursuant to the Company’s policies, and any
unreimbursed business expenses payable pursuant to Section 6
(collectively “ Accrued Amounts ”), which
amounts shall be promptly paid in a lump sum to Executive’s
estate; (ii) any other amounts or benefits owing to Executive
under the then applicable employee benefit plans, long term
incentive plans or equity plans and programs of the Company which
shall be paid or treated in accordance with the terms of such plans
and programs; (iii) continuation of Executive’s health
benefits for Executive’s dependents at the same level and
cost as if Executive were an employee of the Company for twelve
(12) months; and (iv) if a bonus plan is in place, the product
of (x) the target annual bonus for the fiscal year of
Executive’s death, multiplied by (y) a fraction, the
numerator of which is the number of days of the current fiscal year
during which Executive was employed by the Company, and the
denominator of which is 365, which bonus shall be paid in a lump
sum when bonuses for such period are
4
paid to the Company’s other executives,
but, in any event, in the fiscal year following the fiscal year in
which such bonus is earned.
(b)
Disability
. Subject to
Section 8(e), if Executive’s employment is terminated by
reason of Executive’s Disability, Executive shall be entitled
to receive the payments and benefits to which his representatives
would be entitled in the event of a termination of employment by
reason of his death plus, to the extent not duplicative of the
foregoing, Executive shall be entitled to the continuation of
benefits (including, without limitation, health, life, disability
and pension) for a period of twelve (12) months following such
termination of employment as if Executive had been an employee of
the Company.
(c)
Termination by Executive for Good
Reason or Termination by the Company without Cause
. (i) Subject to
Section 8(e), if Executive terminates his employment hereunder
for Good Reason during the Employment Term or Executive’s
employment with the Company is terminated by the Company without
Cause, Executive shall be entitled to receive (A) in equal
installments paid in accordance with the Company’s normal
payroll practices commencing with the first pay period after such
termination over a period of twelve (12) months after such
termination an amount equal to two (2) times the sum of his
Base Salary and target bonus, if any, for the year in which such
termination occurs (provided, however, in the event that the Base
Salary or target bonus, if any, has been decreased in the twelve
(12) months prior to the termination, the amount to be used shall
be the highest Base Salary and target bonus, if any, during such
twelve (12) month period); (B) any Accrued Amounts at the date
of termination; (C) any other amounts or benefits owing to
Executive under the then applicable employee benefit, long term
incentive or equity plans and programs of the Company, which shall
be paid or treated in accordance with the terms of such plans and
programs; (D) continuation of benefits (including, without
limitation, health, life, disability and pension) as if Executive
were an employee of the Company for twelve (12) months, provided
that, if such termination is after a Change in Control, the period
of benefit continuation shall be twenty-four (24) months, subject
to the terms set forth in Section 8(c)(ii); and (E) if a
bonus plan is in place, the product of (x) the target annual
bonus for the fiscal year of Executive’s termination,
multiplied by (y) a fraction, the numerator of which is the
number of days of the current fiscal year during which Executive
was employed by the Company, and the denominator of which is 365,
which bonus shall be paid in a lump sum when bonuses for such
period are paid to the Company’s other executives, but, in
any event, in the fiscal year following the fiscal year in which
such bonus is earned.
(ii)
With respect to the continuation of
group health benefits to Executive in connection with
Executive’s termination of employment after a Change in
Control pursuant to Section 8(c)(i)(D), Executive shall pay
the full cost for such group health coverage on an after-tax basis
for each month that Executive elects to retain such coverage by
payment of the monthly cost of such coverage as determined for
purposes of health care continuation under Section 4980B of
the Internal Revenue Code of 1986, as amended (the “ COBRA
Premium ”). Within five (5) business days of
the date of Executive’s termination of employment, the
Company shall make a payment to Executive equal to the number of
full and partial months remaining in the calendar year in which
Executive’s employment is terminated, multiplied by the
difference between the COBRA Premium for such year and the monthly
amount that Executive was required to pay for group health coverage
immediately prior to his termination of employment. On each
January 2 thereafter until the end of the twenty-four (24)
month period, if Executive has maintained group health coverage
through the last day of the preceding calendar year, the Company
shall make a payment to Executive equal to the difference between
the COBRA Premium and the monthly amount that Executive was
required to pay for group health coverage immediately prior to his
termination of employment, multiplied by 12, or, if the period of
coverage is for less than a year, by the number of full and partial
months remaining in the year until the end of the twenty-four (24)
month period. Notwithstanding the foregoing, the first
18 months following the date of Executive’s termination
of employment shall be considered to be the period during which
Executive shall be eligible for
5
continuation coverage under Section 4980B
of the Internal Revenue Code of 1986, as amended (the “
Code ”).
(d)
Termination with Cause or
Voluntary Resignation without Good Reason or Retirement
. If, Executive’s
employment hereunder is terminated (i) by the Company for
Cause or (ii) by Executive without Good Reason, Executive
shall be entitled to receive only his Base Salary through the date
of termination, and any unreimbursed business expenses payable
pursuant to Section 6 and
